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Resort Torts and the Courts: Vacation, Resort and Recreational Liability

“Resort Torts and the Courts” is a continuing legal education seminar that was provided by Leighton Law, P.A. on November 3 at the Banker`s Club of Miami. Presented by John Elliott Leighton, Esq. and hosted by the Daily Business Review, the seminar also included panelists Circuit Judge Victoria Platzer and defense trial lawyer Rolando Diaz.

Dozens of attorneys, judges, and business professionals gathered to discuss Resort Torts and the Courts. With the resort business still a major economic driver for the state of Florida, the ways in which legal and safety issues are handled here are crucial to businesses, visitors and residents alike.

The Leighton Law seminar series helps educate attorneys so that victims who suffer injuries, accidents and deaths occurring within a resort, cruise or other vacation experience, are well represented in the legal system.

Mr. Leighton provides clients with extensive experience in the area of Resort Torts, including cruise ship, maritime, and violent crime/negligent premises security. Among his cases is the high-profile parasailing death in Pompano Beach, Florida, where he represented the mother of 15-year-old Amber May White against the parasailing operators and the resort where Amber May was killed and her sister injured due to negligent parasailing operations. Mr. Leighton has spearheaded legislative efforts to bring some regulation to this industry. His efforts in Tallahassee have resulted in a bill which he and the family hope to make law.

RESORT TORTS AND THE COURTS:

Resort, Vacation and Recreational Injury Litigation

Leighton Law Annual Seminar Series

Miami and Orlando, Florida

The Bankers Club, Miami

Dozens of attorneys, judges, claims personnel and business professionals gathered at Miami`s Banker`s Club November 3 to discuss Resort Torts and the Courts, as presented by attorney John Elliott Leighton, Circuit Judge Victoria Platzer, and defense trial lawyer Rolando Diaz. With the resort business still a major economic driver for the state of Florida, the ways in which legal and safety issues are handled here are crucial to businesses, visitors and residents alike.

The Leighton Law seminar series helps educate attorneys so that victims who suffer injuries, accidents and deaths occurring within a resort, cruise or other vacation experience, are well represented in the legal system.

What the heck is a Resort Tort?

Resort Torts are instances of civil liability for negligent or intentional acts that arise out of a resort, vacation or recreational setting. They come in all shapes and sizes and can occur almost anywhere in Florida – the common focus is that they involve leisure recreational activities and travel.

Florida has a built-in base of resort tort victims because of the vast tourism industry throughout the state. Tourists are here to have a good time and relax, which can also mean letting their guard down in unfamiliar surroundings where alcohol and late nights prevail.

Resort Torts can affect residents and visitors alike. Deaths, injuries, sexual assaults and other violent crimes occur even in Florida`s most popular theme parks. Transportation by plane, train, automobile, boat, taxicab, rental vehicles, and helicopter tours carry their own risks and perils. With South Florida being the resort cruise capital of the world, the floating cities aboard cruise ships are the equivalent of a resort in the middle of the ocean, providing more potential for injury, disaster, and legal complications.

Cases ranging from issues with key card room entry to carbon monoxide poisoning may turn on case laws regarding the duty that hotels, motels and resorts have to protect their guests and provide them a safe environment. Some key case laws included:

Hotels have “a non-delegable duty to guests to provide a reasonably safe premises, including reasonable protection against third party criminal attacks.” U.S. Security Services Corp. v. Ramada Inn, 665 So. 2d 268 (Fla. 3d DCA 1996) (landowner can contract out performance of non-delegable duty, but he is still legally responsible).

The owner/operator of a hotel, resort, amusement of theme park is subject to the law of respondeat superior and actual and apparent agency to the same extent any other employer is. Therefore, they are liable for the negligent acts and omissions of their employees and agents.

The duty to provide reasonably safe premises is non-delegable, so even though hotel/motel may contract with an independent contractor to provide required security for guests, the hotel/motel is nonetheless vicariously liable for any negligence of the security service. U.S. Security Services Corp. v. Ramada Inn, 665 So. 2d 268 (Fla. 3d DCA 1995).

Hotels must take reasonable precautions to protect its guests from foreseeable criminal assault. Reichenbach v. Days Inn, Inc., 401 So.2d 1366, 1367 (Fla. 5th DCA 1981)(innkeeper may be liable if he fails to take reasonable precautions to deter the type of criminal activity which resulted in a guest`s injury).

Theme Park and Amusement Park Cases

Theme parks provide extraordinary experiences and thrills to their guests, who can also fall victim to their myriad extraordinary hazards. Some law suggests that theme parks and amusements may have a heightened duty of care. Rainbow Enterprises v. Thompson, 81 So 2d 208 (Fla.1955) held that “places of amusement where large crowds congregate are required to keep their premises in a reasonably safe condition commensurate with business conducted; “

There is a possible complete defense if a patron executes a valid release which is clear and unequivocal regarding the risks related to the activity, but the wording must be so clear and understandable that an ordinary person would know what they are contracting away. In Applegate v. Cable Water Ski, 974 So.2d 1112 (5DCA 2008), it was held that a parent cannot sign away a child`s claim in a release.

NEW STATUTE: A new statute just passed last year overturns that somewhat. An amendment to FS 649.98, 744.301 authorizes natural guardians to waive claims in advance. A parent can sign a waiver but only for injuries that are an inherent risk in the activity, not caused by the negligence of the operator.

Surprisingly, there is no federal agency with jurisdiction over fixed amusement rides such as theme parks. State and local authorities are responsible for inspecting, monitoring and regulating the rides. The U.S. Consumer Product Safety Commission (CPSC) has jurisdiction over mobile rides, such as those found at fairs, carnivals and parties. According to the CPSC, in 2004 mobile amusement rides resulted in 2500 injuries requiring emergency room treatment. In that same year, inflatable rides like slides and bounces caused 4900 people to be treated in hospital. By comparison, the CPSC estimated that there were 3400 such injuries at fixed site rides during the same period.

Cruise Ship Cases

Cruise ship cases can range from employee misconduct and criminal acts to mishaps during shore excursions or water sports activities. Most cruise contracts stipulate a statute of limitations of one year, with a written notice requirement of six months. Virtually every case is governed by a one-year contract for limit on liability.

NEW SAFETY ACT: The Cruise Vessel Security and Safety Act was signed into United States law in July 2010 to enforce security measures requiring ships to install peep holes on cabin doors and make further changes affecting rail heights, warning devices, and other security measures. The Act also requires cruise lines to provide shipboard medical care for victims of sexual assault and medical staff that knows how to collect forensic evidence may spread internationally. Apart from the United States flagged ships or foreign flagged ships operating in an area subject to the jurisdiction of the United States, there are currently no international guidelines that explicitly address these passenger safety and security concerns.

Transportation Cases

Vacationers in Florida use a wide variety of transportation vehicles, from taxicabs to tours by helicopter, and of course rental cars. Car rentals are by far the most common, and in Florida both federal and state laws apply to liability cases.

For many years, a renter could allow someone else to drive the car and the rental company would still be liable. The legislature eventually passed a law capping damages for rental car providers at a maximum of $500,000. In 2005, the Graves Amendment, a federal statute, effectively eliminated all vicarious liability for rental car companies where there is no direct negligence or criminal wrongdoing on the part of the rental car company, up to the limit of the state minimum financial responsibility limit. Florida has a $10,000 financial responsibility law. The courts have held that the Graves Amendment, 49 U.S.C. § 30106, is controlling and therefore the prior dangerous instrumentality doctrine does not apply. Kumarsingh v. PV Holding, 983 So. 2d 599 (Fla. 3 DCA 2008).

Casino Cases

Casino cases in Florida currently hinge on the sovereign immunity of the Native American community that runs the facilities under their land grants. They cannot be sued and a plaintiff must go to tribal court. It is important to note, however, that not all areas of a casino location are necessarily tribe owned. Some of the shops and restaurants are “concessions” that are independently owned outside the tribe and can be sued outside tribal court. Common areas around a tribal casino are still considered tribal owned.

The new casino slated to be built in Miami is likely to give rise to a substantial increase in Resort Torts. If built, the hotel alone is expected to have 5,200 rooms, making it the largest in the country.

Premises Liability Cases

Property owners have a general duty to maintain their property with reasonable care and to warn of hidden dangers. They know best what perils exist on their property. Premises liability can come into play in Resort Tort cases ranging from trip and fall or and slip and fall, to security issues and alcohol consumption.

Slip and fall liability cases revolve around issues of proof as to how the plaintiff fell and what caused the fall. For many years, plaintiffs` attorneys had to prove that the business knew something was on the floor, such as a spilled liquid in a bar or restaurant. Then the Legislature passed a statute putting the burden of proof on the owner. That statute was abrogated by the Legislature last year.

NEW LAW: With support business lobbyists last year, the Legislature passed Fla. Stat. 768.0755, which requires the plaintiff to prove the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.

In premises liability cases, courts often look at the status of a person on a property as an invitee, a licensee, or a trespasser. A property owner has no duty in the case of a trespasser except for a “known trespasser,” where the landowner has some knowledge that a third party is using the property. Examples of a licensee include door-to-door salesmen or gardeners who have a reason to be present on a property. A plaintiff`s status may change from invitee to trespasser if the plaintiff exceeds the scope of invitation, such as a hotel guest who wanders into an employee-only marked area.

The status of the person is not determined at the time of entry on the property but at the time of injury. In IRE Florida Income Partners v. Scott, 318 So. 2d 1114 (1 DCA 1979) the court ruled there was no duty when a plaintiff who took a shortcut on the property became a trespasser. In Byers v. Radiant Group, 966 So. 2d 506 (2 DCA 2007), a plaintiff was involved in an altercation in a parking lot some time after leaving a convenience store. The court held it was a jury question as to when the plaintiff`s invitation to the store had expired, and found that the violent behavior of the plaintiff, in itself, did not change his status.

Lighting and Illumination

Indoor and outdoor lighting is crucial for the security and safety of guests at virtually every establishment imaginable, from hotels and resorts to bars, nightclubs, amusement parks and casinos. A case involving a question of safe lighting requires an expert who knows the standards and can measure the lighting and illumination levels.

Most counties and cities have municipal codes that establish lighting requirements, generally for parking lots, walkways and buildings. Miami-Dade County has a lighting ordinance setting minimum illumination. IESNA (Illumination Engineering Society of North America) also has lighting standards for roadways, buildings and common areas. Even when there is no code or ordinance, the owner might have violated an industry standard, which can be evidence of negligence or negligence per se.

Other lighting considerations might include a change in lighting type or a contrast issue. With the transition from incandescent or florescent to halogen to LED, there is often a mix of lighting types in a given area, which creates a “lumen bleed” compromising the quality of the lighting. The contrast issue affects the cones and rods in the eyes that detect contrast and adjust to ambient lighting farther away, causing closer objects to appear darker. This can cause falls and cause or contribute to crime.

Evidence of Prior Incidents

Incident reports are not privileged and can be used to help a plaintiff prove a premises liability case. A copy of any lease or contract between the owner and the business should be obtained and reviewed. In cases involving lessors and lessees, the duty usually turns on possession and control of the property. Haynes v. Lloyd, 533 So. 2d 944 (5 DCA 1988). Most of the time, both parties can be sued. Regarding the common areas of a building, the lessor is usually responsible. Federated v. Doe, 454 So. 2d 10 (3 DCA 1984). Publix v. Jeffery, 650 So. 2d 122 (3 DCA 1995).

In other cases, businesses may be held liable for actions that occur off premises if they know their patrons use a nearby property, as in Borda v. Voodoo Lounge, 950 So. 2d 488 (4 DCA 2007) and Holiday Inns v. Shelburne, 576 So. 2nd 322 (4 DCA 1991). In the Shelburne case, the Holiday Inn was held to have a duty to its patrons as it was directing them to park in a particular parking lot.

Outsourcing a Duty

Many businesses outsource their employees without necessarily making sure those people have had adequate training, putting visitors at risk. In Stoll v. Noel, 694 So. 2d 701 (Fla. 1997), the court held that an independent contractor can also be an agent of the business. These cases turn on specific facts: What people do and how they perform their duties, as in Stuyvesant v. Stahl, 61 So. 2d 18 (Fla. 1953). Therefore, it is important to review their contract before proceeding with depositions.

In cases of actual agency, the principal acknowledges that the agent will act on his behalf, the agent accepts that role and the principal has control over the actions of agent. Some matters involve apparent agency, when someone who is not an actual agent does act in a way that benefits the principal, such as a resort or hotel. National Indemnity v. Consolidated, 789 So. 2d 404 (4 DCA 2001). It is sometimes called “agency by estoppel” and it is created by the facts of the case.

The courts have held that agency does not turn on the labels the parties have chosen to place in a contract. Robinson v. Linzer, 758 So 2d 1163 (4 DCA 2000). Issues of agency are generally issues of facts for the jury to determine.

Premises Security Cases

In Florida, every landlord, owner and lessee owes a duty of care to the public to eliminate and protect against reasonably foreseeable intentional acts of third parties. The business is not an insurer of the public safety, but does have a duty to protect against a reasonably foreseeable act.

Hotels have a non-delegable duty to provide reasonably safe premises to guests. U.S. Security Svos. v. Ramada Inn, 665 So. 2d 268 (3 DCA 1996). A hotel may contract its security services to another company, but the hotel remains liable. While a plaintiff might want to sue the security provider as well, the resort or hotel is the primary responsible party.

In these cases, it helps to work with a security expert from the early stages of the case. There is also no substitute for visiting the crime location, to see firsthand where and how it occurred.

Bars and Nightclubs

A bar or nightclub has a duty to take action even in a situation of one patron attacking another. Hall v. Billy Jack`s, 458 So. 2d 760 (Fla. 1983). In Florida, the totality of the circumstances determines the duty, and a prior similar act is not necessary in order to bring a case. Another relevant case is Priester v. Grand Aerie of Fraternal Order of Eagles, 688 So. 2d 376 (3 DCA 1997), which holds that a bar may be liable if it knowingly serves a guest who is intoxicated and a known alcoholic.

Bars and clubs also face a liability issue with drink spiking, when a substance like a “roofie” or GHB is dropped into a drink, causing the drinker to become uninhibited and typically leading to a sexual assault. Some of these drugs can cause amnesia, so often the evidence is gone by the time the victim regains awareness. Some bars are now scanning everyone`s ID upon entrance, creating a record of who was present at that time.

Water Activities and The Amber May Law

Bacteria at water parks, Jet Ski accidents, boating incidents and parasailing dangers are among the cases that water activities can generate, with both residents and tourists as victims. Unsuspecting vacationers assume that companies offering these fun leisure activities are in compliance with industry laws and regulations and provide properly trained employees.

There are currently no licensing requirements, qualifications or industry standards to become a parasail operator. There are no laws regulating when parasailing companies can or cannot take customers out on the water, despite the string of parasailing accidents that continue to be reported.

In one case covered extensively by national news and television, fifteen-year-old Amber May White died from head trauma and internal injuries sustained when she crashed into a building when the parasail on which she was riding snapped, while on vacation with her family in Pompano Beach. Her sister, who was on the same parasail with her, also suffered head injuries. Their mother hired John Leighton to file a negligence lawsuit against the parasail operators and the resort where Amber May was killed. The parasailing operators took the girls up despite warnings from the weather service about high winds and seas. The equipment used by the parasailing company was inadequate and faulty; the operator ignored weather warnings; and the parasail should never have been within 2000 feet of land or structures.

NEW LAW NEEDED: Legislation has been proposed multiple times to tighten regulation on the industry and each time it has failed. Please SIGN THE PETITION at www.LeightonLaw.com in support of The Amber May Law to regulate the parasailing industry. Let your legislators know that the time has come to regulate this business.

PANELISTS AND SPEAKERS:

John Elliott Leighton is the Managing Partner of Leighton Law, P.A. with offices in Miami and Orlando, Florida. Mr. Leighton has 26 years of experience litigating and trying significant cases on behalf of individuals throughout Florida and the United States. He has been called upon to provide his trial skills to represent plaintiffs throughout the country, including New York, Texas, Indiana, Wisconsin, Georgia, Illinois and North Carolina.

Mr. Leighton received the Advocate of Justice Award from the National Crime Victim Bar Association for his work in representing violent crime victims against corporate defendants. He is a frequent lecturer at national legal programs and has spoken and taught at seminars, colleges and conventions in over a dozen states. He is Chairman of the Inadequate Security Litigation Group of the American Association for Justice (AAJ) and Chairman of the Academy of Trial Advocacy.

Many of Mr. Leighton`s cases are high profile or have wide reaching social implications. Several cases have resulted in policy or procedure changes on the part of the businesses or governmental entities sued. He is often called upon by local and national media to comment on legal issues, including NBC`s The Today Show, Inside Edition, and many other news programs.

Victoria Platzer

Circuit Court, Circuit Civil Division

Dade County Courthouse, 73 West Flagler Street, Miami, Florida

Phone: (305) 349-7069

Bachelor of Arts, Florida Atlantic University

JD, University of Miami

Admitted to Florida Bar, 1983

Admitted to Colorado Bar, 1984

Circuit Court Judge, 1995

Previous Divisions – Criminal, Juvenile, Family, Civil

Private Practice, 1985-1994

Hearing Examiner, Equal Employment Opportunity Commission, 1984-1985

Comments on therobingroom.com about Judge Platzer:

“Outstanding trial judge with an even temperament, the ability to place everyone at ease, and to boil down complex issues into simple ones.”

“Judge Platzer is everything you want in a trial judge – fair, hard working, patient. Just a really good judge. We need more like her.”

“Great judge in every respect. Complete control over proceedings and a pleasant manner.”

Bar Admissions: U.S. District Court Southern District of Florida, State of Florida

Education: University of Miami School of Law, J.D.; University of Florida, B.A.

Honors and Awards: Named Florida Superlawyer` in Medical Malpractice Defense; Law & Politics Magazine, an honor awarded to the top 5% of attorneys In Florida, 2008

“The system of torts is to protect the public. We as a legal community are trying to be the watchdogs and affect positive change in the way laws are written to protect the public. Many times case results depend on the competence of the attorneys on one side or another, knowing the current laws, the argument made, the way it is presented, the evidence that is presented.”